# U.P.S.R.T.C v. Smt. Meghkaur & Anr

- **Citation:** (2023) 1 ILRA 837
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-15
- **Case number:** First Appeal From Order No. 46 of 2013
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-s-r-t-c-v-smt-meghkaur-anr-49193
- **Pages:** 9

## Headnote

Civil Law - Motor Vehicles Act, 1988 -
Section - 173, - UP Motor Vehicles Rules,
1998
-
Rule
220-A(3)(i),
-
Civil
Procedure Code, 1908 - Order 41, Rule
33 - : - Insurer's appeal - against award on
two issues - quantum of compensation &
contributory negligence - deceased was died
in motor accident - in which a rash &
negligent driving of UPSRT bus hit the
deceased when he was driving a bicycle - on
the issue of contributory negligence, court
fixed the sole liability of incident upon UPSRT
- and - on the issue of quantum of
compensation, by reversing finding of learned
tribunal on the issue of Income, future
prospects & conventional heads in the light of
judgment of Hon'ble Apex court rendered in
case of Pranay Sethi's, Urmilla Shukla's, Sarla
Verma's, - impugned award is modified -
directions
issued
accordingly
-
Appeal
disposed of. (Para - 24, 25, 30, 33, 34, 36,
38, 42, 44)
Appeal disposed of. (E-11)

List of Cases cited:

## Text

1 All. U.P.S.R.T.C. Vs. Smt. Meghkaur & Anr.
837
6% p.a., within a period of three months
from today.

14. With the aforesaid, the appeal
stands allowed.
----------
(2023) 1 ILRA 837
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.11.2022

BEFORE

THE HON'BLE AJAY BHANOT, J.

First Appeal From Order No. 46 of 2013

U.P.S.R.T.C. ...Appellant
Versus
Smt. Meghkaur & Anr. ...Opposite Parties

Counsel for the Appellant:
Sri Sanjeev Kumar Yadav

Counsel for the Opposite Parties:
Sri Nigamendra Shukla, Sri Suresh Bahadur
Singh, Sri Jahangir Haider

Civil Law - Motor Vehicles Act, 1988 -
Section - 173, - UP Motor Vehicles Rules,
1998
-
Rule
220-A(3)(i),
-
Civil
Procedure Code, 1908 - Order 41, Rule
33 - : - Insurer's appeal - against award on
two issues - quantum of compensation &
contributory negligence - deceased was died
in motor accident - in which a rash &
negligent driving of UPSRT bus hit the
deceased when he was driving a bicycle - on
the issue of contributory negligence, court
fixed the sole liability of incident upon UPSRT
- and - on the issue of quantum of
compensation, by reversing finding of learned
tribunal on the issue of Income, future
prospects & conventional heads in the light of
judgment of Hon'ble Apex court rendered in
case of Pranay Sethi's, Urmilla Shukla's, Sarla
Verma's, - impugned award is modified -
directions
issued
accordingly
-
Appeal
disposed of. (Para - 24, 25, 30, 33, 34, 36,
38, 42, 44)
Appeal disposed of. (E-11)

List of Cases cited:

1. Jitendra Kimshankar Trivedi & ors. Vs Kasam
Daud Kumbhar & ors. (2015) 4 SCC 237,

2. Arun Kumar Agarwal & anr. Vs National
Insurance Co. Ltd. & ors. (2010) 9 SCC 218,

3. Mahant Dhangir & anr. Vs Madan Mohan &
ors. (AIR 1988 SC 54),

4. Delhi Electric Supply Undertaking Vs Basanti
Devi (AIR 2000 SC 43),

5. National Insurance Co. Ltd. Vs Smt. Vidyawati
Devi & ors. (FAFO No.2389/2016 decided on
27.07.2016),

6. New India Assurance Co. Ltd. Vs Smt. Suman
Mishra & ors. (2019 (5) ADJ 669),

7. National Insurance Co. Ltd. Vs Pranay Sethi &
ors., (2017 (16) SCC 680),

8. New India Assurance Co. Ltd. Vs Urmilla
Shukla & ors. (2021 SSC Online SC 822),

9. Smt. Sarla Verma & ors. Vs Delhi Transport
Corp. & anr. (2009 (6) SCC 121).

(Delivered by Hon'ble Ajay Bhanot, J.)

I. Introduction

1. This first appeal from order arises
out of the judgment and award dated
29.9.2012 passed by the learned Motor
Accident Claims Tribunal/learned District
and Sessions Judge, Court No.4, Ghaziabad
in Motor Accident Claim Petition No.261
of 2011 (Smt. Meghkaur and another v.
U.P.State Road Transport Corporation.

2. The first appeal from order has
been filed by the U.P. State Road Transport
Corporation contesting its liability to pay
and also the quantum of compensation
838 INDIAN LAW REPORTS ALLAHABAD SERIES
awarded by the learned Tribunal. An oral
cross-objection has been raised on behalf of
the
respondents-claimants
seeking
enhancement of compensation.

II. Case of the claimants and the
respondents before the learned Tribunal:

3. Briefly the case of the claimants
before the learned Tribunal was that the
deceased-Bhikam Singh died in a motor
accident on 29.12.2010, which was caused
by rash and negligent driving of the
UPSRTC bus driver. The deceased was
riding a bicycle when he was hit by the
offending UPSRTC bus. The claimants
were dependant on the deceased and were
entitled for compensation from UPSRTC.
The UPSRTC resisted the claim of the
claimants by filing a written statement.
Both parties adduced evidence at the trial.

III. Compensation awarded by the
learned tribunal:

4. Learned tribunal found that the
accident was caused by the rash and
negligent driving of the driver of UPSRTC
bus number.

5. The learned tribunal in the
impugned
judgment
dated
29.09.2012
awarded compensation which is depicted in
a tabulated form hereunder:

Sr.
No.
Heads
Amount (in rupees)
1
Monthly
Income
(A)

5,500/- p.m. from private job
and
3000/-
p.m.
from
agriculture
2
Annual Income (B)

8,500/-
3
Future prospects (C)

30% of 8,500/- = 11,050/-
4
Annual Income +
Future Prospects (B
+ C = D)
19,550/-
5
Total income after
deduction (E)
11,050 -3,683 = 7,367/-
6
Multiplier (F)
11
7
Total
loss
of
dependency
(E x F)
7367 x 12 x 11 = 9,72,444/-
8
Funeral expenses

10,000/-
9
Loss of love and
affection

25,000/-
10
Loss estate

25,000/-
11
Loss of consortium

30,000/-
12
Total compensation

10,62,444/-
13
Interest

7.50%

6. Shri Sanjeev Kumar Yadav, learned
counsel for the appellant has assailed the
award on these two issues. The learned
tribunal erred by finding against the
appellant on the issue of contributory
negligence. The compensation awarded to
the claimants-respondents was excessive.

7. Shri Nigamendra Shukla, learned
counsel for the respondents-claimants has
raised an oral cross objection contesting the
quantum of the awarded compensation.
According to the learned counsel for the
respondents-claimants, the income of the
deceased was improperly assessed. The
compensation is liable to be enhanced.

Rejoining the issue, the learned
counsel for the appellant-UPSRTC disputes
the maintainability of the cross objection at
the appellate stage.

IV. Issues for consideration:
1 All. U.P.S.R.T.C. Vs. Smt. Meghkaur & Anr.
839

8. After advancing their arguments,
learned counsel for both the parties agree
that though many grounds have been
pleaded, only the following questions fall
for consideration in this appeal:-

(A).
Whether
oral
cross
objections can be raised by the claimants at
the stage of appeal?

(B). Whether the driver of the
UPSRTC bus was solely responsible for the
accident or it was a case of contributory
negligence?

(C). Whether learned Tribunal
correctly computed the compensation under
these various heads:-

(i) income,

(ii) conventional expenses,

(iii) future prospects,

(iv) multiplier, and

(v) interest while computing the
compensation?

V.(A) Issue of oral cross objection:

9. The question whether oral
objections
can
be
raised
for
an
enhancement of compensation at the stage
of appeal has been well settled by good
authorities in point.

10. The jurisdiction of the appellant
court to allow a party to take oral
objections is traceable to the power of the
court of appeal enumerated in Order XLI
Rule 33 of the CPC. The Order XLI Rule
33 of the CPC is reproduced hereinafter :-

"Rule 33. Power of Court of
Appeal.-The Appellate Court shall have
power to pass any decree and make any
order which ought to have been passed or
made and to pass or make such further
other decree or order as the case may
require, and this order may be exercised by
the Court notwithstanding that the appeal is
as to part only of the decree and may be
exercised in favour of all or any of the
respondents or parties may not have filed
any appeal or objection and may, where
there have been decrees in cross suits or
where two or more decrees are passed in
one suit, be exercised in respect of all or
any of the decrees, although an appeal may
not have been filed against such decree."

 (emphasis supplied)

11. The amplitude of the provision
ensures that the arms of law are long
enough to reach injustice, and the arms of
the Court are enough to serve justice.
Drawing its power from the aforesaid
provision, the appellate court may pass
orders to serve the ends of justice.

12. More specifically the beneficent
nature of the legislation and the statutory
mandate of the Motor Vehicles Act, 1988
enjoin the appellate court to exercise its
powers under Order 41 Rule 33 to award
just
compensation.
[See:
Jitendra
Kimshankar Trivedi and others vs.
Kasam Daud Kumbhar and others1,
Arun Kumar Agarwal and another vs.
National Insurance Company Ltd. and
others2]

13. The scope of Order 41 Rule 33 of
the CPC the Supreme Court in Mahant
Dhangir and another v. Madan Mohan
and others3 held:-

"11.The
next
question
for
consideration
is
whether
the
crossobjection was maintainable against Madan
Mohan, the co-respondent, and if not,
whether the Court could call into aid Order
41 Rule 33 CPC. For appreciating the
contention it will be useful to set out
hereunder R. 22 and R. 33 of order 41:
840 INDIAN LAW REPORTS ALLAHABAD SERIES

"R. 22 Upon hearing, respondent
may object to decree as if he had preferred
separate appeal. (1) Any respondent,
though he may not have appealed from any
part of the decree, may not only support the
decree (but may also state that the finding
against him in the Court below in respect of
any issue ought to have been in his favour,
and may also take any cross-objection) to
the decree which he could have taken by
way of appeal, provided he has filed such
objection in the Appellate Court within one
month from the date of service on him or
his pleader of notice of the day fixed for
hearing the appeal, or within such further
time as the Appellate Court may see fit to
allow.

R. 33 Power of Court of Appeal.

The Appellate Court shall have
power to pass any decree and make any
order which ought to have been passed or
made and to pass or make such further
other decree or order as the case may
require, and this order may be exercised
by the Court notwithstanding that the
appeal is as to part only of the decree and
may be exercised in favour of all or any of
the respondents or parties may not have
filed any appeal or objection and may,
where there have been decrees in cross
suits or where two or more decrees are
passed in one suit, be exercised in respect
of all or any of the decrees, although an
appeal may not have been filed against
such decree."

14. The same view was reiterated in
Delhi Electric Supply Undertaking vs.
Basanti Devi4.

15. Adverting to the extent of powers
under Order XLI Rule 33 of the CPC, this
Court in National Insurance Co. Ltd. vs.
Smt. Vidyawati Devi and others5 held
thus:

"Order XLI Rule 33 of the Code
of Civil Procedure prescribing the power of
court of appeal clearly provides that the
Appellate Court shall have power to pass
any decree and make any order which
ought to have been passed or made as the
case may require, and this power may be
exercised in favour of all or any of the
respondents or parties though they may not
have filed any cross appeal or objection."

16.

Following
Vidyawati
Devi
(supra) was followed in New India
Assurance Co. Ltd. v. Smt. Suman
Mishra and others6. Wherein Thaker, J.
permitted counsels to raise oral objections
and enhanced the compensation even in
absence of written cross objections in
appeal by holding:

"44. It is submitted that the
amount which is granted is not just
compensation and it is orally submitted that
the amount of compensation requires to be
enhanced in light of Division Bench
decision of this High Court in First Appeal
From Order No.2389 of 2016 ( National
Insurance Co. Ltd. Versus Smt. Vidyawati
Devi And 2 Others) decided on 27.7.2016
wherein it is held that under Order 41 Rule
33 of Code of Civil Procedure, amount of
compensation can be enhanced even if
there is no written appeal or written cross
objection. This applies to this case also
recently it has been held by Apex Court in
North East Karnataka Road Transport
Corporation Vs. Smt. Sujatha, AIR 2018
SC 5593 that for beneficial legislation the
Court should grant enhancement even if
other side is not present.

45.
The
principles
of
law
pertaining to grant of just compensation
cannot be said to have been adhered by
Tribunal and therefore, it will have to be redecided as per the decision in First Appeal
1 All. U.P.S.R.T.C. Vs. Smt. Meghkaur & Anr.
841
From Order No.2389 of 2016 ( National
Insurance Co. Ltd. Versus Smt. Vidyawati
Devi And 2 Others) decided on 27.7.2016."

17. When the conditions precedent for
raising cross objections were satisfied, this
Court in Vidyawati Devi (supra) was not
found wanting in entertaining the cross
objections by holding thus:

"We are of the considered view
that the conditions as laid down in
provisions of Order XLI Rule 33 are
satisfied in the present case. In Delhi
Electric Supply Undertaking (Supra) the
Hon'ble Apex Court has observed that
when circumstances exist which necessitate
the exercise of discretion conferred by Rule
33, the court cannot be found wanting
when it comes to exercise its powers."

18. In wake of the preceding
discussion and authorities in point, the oral
cross objections on behalf of the claimantsrespondents are liable
to be heard.
However, this Court may mould the relief
appropriately to obviate prejudice to either
parties.

V.(B)
Issue
of
contributory
negligence in the accident:

19. The claimants introduced P.W.2Yameen to establish negligent driving by
the UPSRTC bus driver. P.W.2-Yameen
deposed before the learned tribunal that he
had witnessed the accident. P.W.2-Yameen
testified that the rash and negligent driving
of the UPSRTC bus driver caused the
accident in which the deceased died. P.W.2Yameen was travelling in the offending bus
with a valid passenger ticket on the fateful
journey. He produced the bus ticket and
proved the same. P.W.2-Yameen could not
be shaken under cross-examination. The
authenticity of the bus ticket was never
challenged.

20. The learned tribunal which had
the benefit of observing the demeanour of
the P.W.2-Yameen found to be a credible
witness and believed his testimony. From
the evidence in the record, this Court has
no reason to take a different view on this
point.

21. It would be apposite to consider
the argument on behalf of the appellantUPSRTC that the eye witness P.W.2Yameen was unworthy of reliance as he
gave a belated affidavit to the police
authorities. The argument has no legs to
stand on.

22. The police investigations are
made into the criminal offence under the
provisions of the Cr.P.C. read with the IPC.
The compensation action which is the
subject matter in this appeal is taken out
under the Motor Vehicles Act, 1988 for an
entirely
different
purpose.
Separate
standards of evidence are applicable to the
respective proceedings.

23. I see merit in the submission of
Shri Nigamendra Shukla, learned for the
respondents-claimants/cross objectors that
the delay in recording the statement of the
eye witness P.W.2-Yameen was on account
of inefficiency of the police investigators
for which the claimants can neither be
faulted nor made liable.

24. The evidence in the record
establishes that the UPSRTC bus driver
drove negligently and rashly, and was
entirely responsible for the accident. The
over speeding bus left the deceased with no
time or opportunity to prevent the accident
or save himself. The deceased who was
842 INDIAN LAW REPORTS ALLAHABAD SERIES
riding a bicycle prudently and cannot be
faulted in any manner for the mishap. This
is not case of contributory negligence. On
this foot the UPSRTC is held to be fully
liable to pay compensation to the claimants.

25. Learned tribunal found for the
claimants and against the UPSRTC on the
issue of contributory negligence and
accordingly fixed the sole liability on the
latter. There is no infirmity in the manner
of appraisal of pleadings and evidence by
the learned tribunal on this issue.

VI. (C)(i) Income of the deceased:

26. The learned tribunal upon
consideration of evidence before it found
that the income of the deceased from
various sources is Rs.8,500/- per month.

27. The claimants had introduced
P.W.1-Meghkaur (widow of the deceased),
and land records to establish the income of
the deceased before the learned tribunal.
The wife of the deceased P.W.1-Meghkaur
testified that the deceased worked in a
paper mill, and was also engaged in
agricultural activities. The land records
attesting the agricultural holdings in the
name of the deceased were proved by the
claimants.

The learned tribunal found that
the deceased earned a monthly salary of
Rs.5,500/- per month as a worker in the
paper mill and fixed the agricultural
income of the deceased at Rs.3,000/- per
month.

28.

Learned
counsel
for
the
respondents-claimants contends that the
income of Rs.3,000/- per month towards
agricultural fixed by the learned tribunal
was perverse.

29. Learned counsel for both the
parties have perused the original records in
court and have affirmed that the land
falling to the share of the deceased in the
joint agricultural holding was 0.7 hectares.

30. There is merit in the contention of
the learned counsel for the claimantrespondent/cross objector that the learned
tribunal neglected to consider the fertility
of the land and the extent of the deceased
land holdings while fixing the agricultural
income.
It
is
undisputed
that
the
agricultural holdings are situated in a fertile
tract at District-Ghaziabad. Accordingly,
the agricultural income is assessed at
Rs.4,000/- per month. The finding of the
learned trial court in this regard is reversed.

31. In the wake of preceding
discussion, the total monthly income of the
deceased is fixed at Rs.9,500/- per month.

IV.(C)
(ii)
Calculation
of
Conventional Heads:

32. The amount determined under
conventional heads in the impugned award
is at variance with National Insurance
Company Ltd. v. Pranay Sethi and
others7. The conventional heads were
fixed in Pranay Sethi (supra) by holding
as under:

"54. ......The conventional and
traditional heads, needless to say, cannot be
determined on percentage basis because
that would not be an acceptable criterion.
Unlike determination of income, the said
heads
have
to
be
quantified.
Any
quantification must have a reasonable
foundation. There can be no dispute over
the fact that price index, fall in bank
interest, escalation of rates in many a field
have to be noticed. The court cannot remain
1 All. U.P.S.R.T.C. Vs. Smt. Meghkaur & Anr.
843
oblivious to the same. There has been a
thumb rule in this aspect. Otherwise, there
will be extreme difficulty in determination
of the same and unless the thumb rule is
applied, there will be immense variation
lacking any kind of consistency as a
consequence of which, the orders passed by
the tribunals and courts are likely to be
unguided. Therefore, we think it seemly to
fix reasonable sums. It seems to us that
reasonable figures on conventional heads,
namely, loss of estate, loss of consortium
and funeral expenses should be Rs.
15,000/-, Rs. 40,000/- funeral expenses
should be Rs. 15,000/-, Rs. 40,000/- And
Rs. 15,000/- respectively."

33. The figure under conventional
heads determined in Pranay Sethi (supra)
shall be applicable to the facts of this case.
The award is modified accordingly.

IV.(C)(iii) Future Prospects:

34. The future prospects are liable to
be calculated in accordance with the Uttar
Pradesh Motor Vehicles Rules, 19988. Rule
220A-3(i) of the Rules is relevant and is
reproduced hereunder:

"(3) The future prospects of a
deceased, shall be added in the actual
salary or minimum wages of the deceased
as under--

(iii) More than 50 years of age :
20% of the salary."

35. The UP Rules, 1998 came up for
consideration before the Supreme Court in
New India Assurance Co. Ltd. vs. Urmila
Shukla and others9. In Urmila Shukla
(supra) upon consideration of various
judgements
including
Pranay
Sethi
(supra) held:

"10. The discussion on the point
in Pranay Sethi was from the standpoint of
arriving at "just compensation" in terms of
Section 168 of the Motor Vehicles Act,
1988.

11. If an indicia is made available
in the form of a statutory instrument which
affords a favourable treatment, the decision
in Pranay Sethi cannot be taken to have
limited the operation of such statutory
provision specially when the validity of the
Rules was not put under any challenge. The
prescription of 15% in cases where the
deceased was in the age bracket of 50-60
years as stated in Pranay Sethi cannot be
taken as maxima. In the absence of any
governing
principle
available
in
the
statutory regime, it was only in the form of
an indication. If a statutory instrument has
devised a formula which affords better or
greater benefit, such statutory instrument
must be allowed to operate unless the
statutory instrument is otherwise found to
be invalid." (emphasis supplied)

36. The Rules of the Uttar Pradesh
Motor Vehicles Rules, 1998 were not under
consideration before the Supreme Court in
Pranay Sethi (supra) or Sarla Verma
(Smt.) and others v. Delhi Transport
Company and another10. Future prospects
in Pranay Sethi (supra) were determined
without noticing the U.P. Rules,1998. This
fact was adverted to in Urmila Shukla
(supra):

"8. It is submitted by Mr. Rao that
the judgment in Pranay Sethi does not
show that the attention of the Court was
invited to the specific rules such as Rule
3(iii) which contemplates addition of 20%
of the salary as against 15% which was
stated as a measure in Pranay Sethi. In his
submission, since the statutory instrument
has been put in place which affords more
844 INDIAN LAW REPORTS ALLAHABAD SERIES
advantageous treatment, the decision in
Pranay Sethi ought not to be considered to
limit the application of such statutory
Rule."

37. The U.P. Rules,1998 are statutory
in nature and their operation is not stymied
by Pranay Sethi (supra). The U. P. Rules,
1998 have the force of law and shall apply
with full force in appropriate cases. The
U.P. Rules, 1998 are more beneficial for the
claimants than the provisions made in
Pranay Sethi (supra) for them. The
holdings in Pranay Sethi (supra) can not
dilute the advantages conferred by U.P.
Rules, 1998 upon the eligible beneficiaries.

38. This Court finds that the
claimants/respondents are entitled to 20%
enhancement in wages towards future
prospects, consistent with the UP Rules,
1998. The necessary changes in the award
shall be accordingly made.

39. In this wake, this Court finds for
the appellant on the issue of grant of future
prospects.

IV(C)(iv) Multiplier:

40. The age of the deceased was 55
years at the time of death. Multiplier of 11
has been correctly applied by the learned
Tribunal and is in line with Pranay Sethi
(supra) and Sarla Verma (supra).

IV.(C) (v) Interest

41. Interest of 7.5% and the manner
of
payment
does
not
call
for
interference. However, the claimantsrespondents shall not be entitled to
interest
on
the
enhanced
income
determined in this judgement.

VII.
Determination
of
Compensation
to
which
claimantsrespondents are entitled:

42. In the wake of preceding
discussion, the amount of compensation
awarded to the claimants is tabulated
below:

i. Date of Accident
-
29.12.2010 at 8.00 P.M.

ii. Date of death

 -
29.12.2010

iii. Name of the deceased
-
Bhikham Singh

iv. Age of the deceased
-55
years

v. Occupation of the deceased

-Private Job/Agriculture

vi. Income of the deceased -
Rs.8,500/-

vii. Name, Age and Relationship
of claimants with the deceased

Sr. No.

Sr. No.
Name
Age
Relation
1
Smt. Meghkaur
50
Wife
2
Neeraj Kumar
29
Son

vii. Computation of Compensation

Sr. No.
Heads
Amount (in Rupees)
1
Monthly
Income (A)

5,500/- p.m from service and
4,000/- p.m. from agriculture
=9,500/-
2
Annual
Income (B)
(A x 12 = B)
9,500 x 12
= 1,14,000/-
3
Future
Prospects (C)
20% of 1,14,000
= 22,800/-
4
Annual
Income
+
Future
Prospects (B
+ C = D)
1,14000 + 22,800/-
= 1,51000/-
1 All. Smt. Urmila Devi Vs. Rajendra Pal Tayal & Ors.
845
5
Total annual
income (D)
1,36,800/-
6
Deduction
1/3rd (E)
45,600/-
7
Total income
after
1/3rd
deduction
(D-E= F)
1/3 of 1,36,800/-
=91,200/-
8
Multiplier
(G)

(FxG = H)
91,200 x 11
= 10,03,200/-
9
Compensatio
n (H)
10,03,200/-
10
10
Conventional
Heads (I):
(H + I = J)
(a) Loss of
consortium
(b) Loss of
Estate
(c)
Funeral
Expenses
70,000/-
11
Total
Compensatio
n (H+I =J)
1,003,200/- + 70,000/-
=10,73,200/-
12
Interest
7.50%

VII. Conclusion and Directions:

43. The amount of compensation to
which the claimants have thus been found
entitled
shall
be
deposited
by
the
corporation within three months before the
learned tribunal. Thereafter the learned
tribunal shall release the amount to the
claimants without delay. The amount
already disbursed to the claimants (if any)
shall be duly adjusted.

44. The amount of Rs.25,000/-
deposited by the appellant while instituting
the appeal shall be forthwith remitted to the
learned tribunal. The amount shall be paid
to the claimants as part of the awarded
compensation amount.

45. The first appeal from order and
the cross-objections both are decided as
above.
----------
(2023) 1 ILRA 845
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.11.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

First Appeal From Order No. 366 of 2021

Smt. Urmila Devi ...Appellant
Versus
Rajendra Pal Tayal & Ors.
 ...Opposite Parties

Counsel for the Appellant:
Sri Amitabh Agarwal, Sri Kiran Kumar
Arora, Sri Siddharth Singh

Counsel for the Opposite Parties:
C.S.C., Sri Ramesh Upadhyay, Sri A.A.
Khan,
Sri
Mohd.
Saleem
Khan,
Sri
Swetashwa Agarwal

Civil Law - Court Fees Act, 1870 -
Section - 7 (iv)(B), 7 (v)(II): - Appeals -
against impugned direction to pay court fees
ad valorem - original suit - for mandatory
injunction - Appellant terminated the license
of defendant's for running pottery Form over
the
suit
property
-
when
defendant/respondent did not give possession
of suit property - plaintiff claiming relief of
possession - court held that - in the light of
judgment of Apex Court in case of Sant Lal
Jain, the original suit would lie for mandatory
injunction - hence, the impugned direction of
trial court to pay fees under section 7(v)(II) is
liable to set aside - court fees paid by the
plaintiff is correct and proper - Appeal allowed
-
direction
issued
for
conclude
suit
expeditiously accordingly. (Para - 18, 24, 26)

Appeal is allowed. (E-11)

List of Cases cited:

1. Sri Dori Lal Premi Vs Smt. Vidya Devi, Second
Appeal No. 975 of 2013,